Tuesday, 20 June 2017

US Constitution- Chapter 1
Size and Diversity of the USA
- USA is a very vast country
• Whole of the UK would fit inside the state of Oregon
• There are 4 different time zones across the entirety of the USA
• It has been referred to as a ‘melting pot’ of different cultures and ethnicities from the
African American Slaves to the first European settlers and the most recent Hispanic
migration from south America.

• Many of the different regions have different ideologies across the country such as the
North south divide where the south is much more traditionally conservative and the
liberal parts of the country down both the east and west coast of the country.

Philadelphia Convention and the formation of the Constitution

- There was considerable problems in the first 13 states in relation to British Monarchy
• They were economically exploited
• Were made to pay taxes
• Didn’t have any representatives in the UK parliament
• Led to growing resentment of the British and eventually led to the War of Independence
(1775)

- 4th July 1776- Declaration of Independence made the US people free and liberated
• Articles of Confederation was created but was very much a weak document so a
constitution was created after 1787 because of this weakness and the requirement for an
efficient system without English rule.

• Articles of Confederation- The agreement between the 13 states that formed the basis of
their government from 1781 until it was replaced with the constitution.

• Confederacy- A league of independent states in which centrally controlled government

was limited and it really resembled more of an international organisation (UN) as
opposed to a government that worked efficiently.

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Writing of the Federal Constitution
- The Philadelphia Convention was made up of the 55 delegates from 12 of the 13 states as
one was reluctant to be involved.

• They then met in Philadelphia and wrote a new basis for government which had a strong
central government with states having individual rights and liberties

• They then drafted the new document even though they initially just wanted to reform the
current document

• It contained a bill of rights and checks and balances between the levels of government
- The USA then established a codified constitution which had a full and authoritative set of
rules written down in a single document

The US Constitutions Articles

- Article 1
• Established Congress as the national legislature.
• Given powers to ‘lay and collect taxes’
• ‘Declare War’
• Make all laws
- Article 2

• Singular Exec power in the presidents hands

• Will be chosen indirectly by the electoral college after a general election
- Article 3
• Establishes supreme court
• Congress added trial and appeal courts to the constitution
• Courts judicial powers applies to all cases in regard to the US constitution

Constitutional Amendments
- The founding fathers acknowledged that there would be some possible reform required but
they wanted to make this a difficult thing to do

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• Amending legislation is a two stage process
• Requires a super majority of 50%
• Stage 1 of the amendment process is the proposal
• Stage 2 is the ratification
• All constitutional amendments have been proposed by congress
• Once an amendment is successfully proposed it is sent to the states for ratification which
is done by either 3/4 of the legislatures or by state conventions.

• Of the 33 amendments that have been passed by congress, the states have ratified 27 of
them

• Once an amendment has been successfully proposed by congress, it stands a good

chance of finding its way into the constitution.

• Only 6 have failed at the ratification stage for over 220 years.
• The most recent constitutional amendment was in 1972 where equal rights for women
were guaranteed

The Bill of Rights and Later amendments

- Of the 27 amendments to the Constitution, the first ten were proposed together by congress
in 1789 and were then ratified together by 3/4 of the states in 1791

• Known widely as the US Bill of Rights

• Many states had somewhat reluctantly signed up to the new federal constitution with its
potentially powerful centralised government

• It was introduced to protect Americans against over powerful federal government

- 17 further amendments have been passed since the Bill of Rights

• 12th Amendment revised the process for electing a president (1804)

• 13th/14th/15th were proposed and ratified immediately after the civil war to end slavery
and guarantee rights for the former slaves

• 16th amendment is crutial in understanding how the federal governments power

increased during the 20th century. It allowed the govt to impose an income tax.

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• 17th amendment provided for direct election of the senate as previously to this they were
elected by their state legislature

• 22nd amendment limited Presidents to 2 terms (1951)

• 25th amendment (1967) dealt with issues of presidential disability and succession which
came following the assassination of President Kennedy four years earlier

• 26th amendment (1971) meant that 18 was the voting age

- Recent amendments
• In Bill Clintons presidency there were 18 votes on proposed reform which was an
unusually high number

• In George Bush’s presidency there were 10 attempts to amend the constitution but only
3 of the 10 votes received the majority that they required

• Republicans retook control of the House of Representatives in 2011 which meant that
numerous amendments were introduced such as balancing the federal budget and abolish
the electoral college

Why the constitution has been amended so rarely

- There are four significant reasons for the limited change:
• The founding fathers created a deliberately difficult process. The need for both congress
and the states to agree and the need for super-majorities make the amendment process
difficult

• Founding Fathers created a document which was deliberately unspecific. For example
congress can ‘provide for the common defence and general welfare' of the people which
means it can evolve without official amendments

• The supreme court has the power to interpret the constitution and therefore they can
dictate what the constitution means today such as in amendment 8 where it forbids ‘cruel
and unusual punishments’ and due to ‘interpretive amendments’ they have the power to
change the meaning in the modern day

• Americans are very cautious of tampering with their constitution. In the early 20th
century they got themselves into a very difficult situation where they banned alcohol but
then 14 years later it became discredited and it was repealed.

- This was seen as a very strong lesson to learn for future Americans

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Constitutional Rights
- The constitution does guarantee certain constitutional rights (fundamental rights
guaranteed by the federal constitution principally in the Bill of Rights but also in
subsequent amendments) and the government both local and federal have to take steps to
protect the rights.

• All three branches of the federal government play an important role in this protection
• 1st amendment guarantees the most basic and fundamental rights
- Freedom of Speech
- Freedom of Religion
- Freedom of the Press
- Freedom of Assembly

• 2nd Amendment guaranteed the rights of the people to ‘keep and bear arms’
- This was the focus of the gun debate and the supreme court weighed in with a major
decision on the meaning of this Amendment in 2008

• 4th amendment is the right against unreasonable searches (of person or property)
• 5th Amendment is the right to silence, protecting the individual from self incrimination

Separation of Powers
- Constitution was drawn up in Philadelphia in 1787 which divided the government into
three branches based on what is known as the doctrine of separation of powers which
means government is split into 3 branches of legislature, the executive and the judiciary

• All independent and interdependent

- Was put in place by the founding fathers because of their fear of tyranny

• ‘when the legislative and the executive powers are united in the same person… there can
be no liberty’

• Separation of powers is often known as shared powers as the institutions of government

are separate but power is shared through checks and balances

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• Founding Fathers had the idea that each of the independent and co-equal branches
should check the powers of others

• They wanted limited government (a principle that the size and scope of the federal govt
should be limited to that which is necessary only for the common good of the people)
where govt would only do what was essential

• No person can be in more than one branch of govt

- Al Gore was elected VP in 1992 and had to resign from the senate
- Obama had to resign as Senator when he became president

• Govt powers aren't separate but the institutions are as the powers are equal and shared

Checks and Balances

- A system of government in which each branch exercises control over the actions of other
branches of government

- Checks by Exec on Legislature

• President is given the power to recommend legislation to congress

- Done formally in January of each year
- State of the Union address (2002, Bush used it to promote the agenda for ‘war on
terror’ after 9/11) is an address to House of Representatives and Senate as well as the
Cabinet and the Supreme Court judges

• President also has power to veto bills passed by Congress

- Checks by Exec on the Judiciary
• President nominates all federal judges to the trial court, appeal court and supreme court
- Supreme court are most important as the philosophy of appointments fits that of the
president which means they can mould the makeup of the judiciary in years to come

• President has the power of pardon

- 1974 Ford pardoned his predecessor (Nixon)
- Clinton pardoned 140 people over 8 years

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• Watergate- A term used to refer to a collection of illegal activities conducted by senior
members of Nixon's administration and the cover-up that followed which eventually led
to his resignation in 1974

- Checks by Legislature on Exec

• Congress can amend, block or reject items recommended by the president for example
the healthcare bill Obama put forward in 2010

• Congress can override the presidents veto but they do require 2/3 of majority in both
houses (Bush had 4/11 of his vetoes overridden)

• All money that the president wants to spend must be voted for by congress and if they
refused this it could curtail their proposals (2007, democrat controlled congress
attempted to limit George W. Bush’s spending on Iraq)

• Foreign Policy- Two checks in place from congress on the president

- congress has power to declare war despite ‘commander in chief’

• Senate has power to ratify treaties negotiated by the president but a 2/3 majority is
required

• Another check is held by the senate which is the power to confirm many of the
appointments made by the president to the executive branch and all of the appointment
made to the federal judiciary.

- Exec appointments subject to senate confirmation and a majority is required for

confirmation

- Rejections are unusual as senators are usually consulted prior to this events
- In 1987 Reagan’s nominee for supreme court Robert Bork was rejected
- In 1997 US district court nominee Ronnie White was rejected

• Power of investigation- congress can investigate the actions or policies of any member
of the exec including the president (normally via committees, such as 2017 Intelligence
committee investigation into Russian involvement in 2016 election)

- In 2012, House oversight and Government Reform Committee launched investigation

into Obama administration over loss of life of 4 Americans in Benghazi.

• Impeachment is the final check as they can formally accuse a President or exec member.
It can meant that they can be removed from office, this is the ultimate power as there is
no similar check in place meaning that the President can remove congress

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- 2/3 majority is required to remove them from office
- 2 president has been impeached but neither were convicted

• Andrew Johnson 1868

• Bill Clinton 1998

Checks by legislature on Judiciary

- Congress has two checks on courts
• Power of impeachment by House of Representatives
• Trial by Senate
• Removal from office (if 2/3 majority)
- In the space of 3 years (86-89) Congress removed three federal judges

• Harry Claiborne for tax evasion

• Alcee Hastings for bribery
• Walter Nixon for perjury
- Subtle check is that they can propose constitutional amendments to overturn a decision of
the supreme court

• 1896 the supreme court declared federal income tax to be unconstitutional so then the
congress proposed the 16th amendment to give Congress the power to levy income tax

Checks by Judiciary on the Legislature

- Possesses one very significant power by the Supreme court which is that of Judicial review
• Power of the court to declare acts of congress to be unconstitutional
• therefore they become null and void
- In 2012, the court declared that Obama’s Affordable care act constitutional but at the
same time decided that congress could not require non-insured Americans to buy
healthcare

• This shows the court putting a check on congressional power

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Checks by Judiciary on the Exec

- Courts have the same judicial review over the exec branch
- They can declare actions of any member of the exec to be unconstitutional

• In US v Nixon (1974) the court ordered Nixon to hand over the White House tapes and
stop impeding investigation of the Watergate affair

Political Importance of Checks and Balances

- Have very important consequences for US politics.
• Encourage bipartisanship (close cooperation between two major parties. In US system of
govt where it is possible to have a president of one party and a congress of another and
having a bipartisan system is vital to success) and compromise between the president
and congress.

- Laws are usually passed, treaties ratified, appointments confirmed and budgets fixed
only when both branches work together rather than pursue a partisan approach

• In 2010, Obama managed to get Tax Relief and Job Creation Act passed because of
a bipartisan agreement to get the legislation in place

• Gridlock can occur as most recent presidents have accused the senate of either
rejecting or blocking their judicial nominations for partisan reasons

Divided Government
- Where one party controls the presidency but the other party still control the congress
• between 1969 and 2012, there have been 22 years of divided government
• only 12.5 years of this period did one party control the presidency and both houses of
Congress

• for 9.5 years the president controlled one house of congress but not the other
- Does the divided government make the checks and balances between Congress and the
president more or less effective?

• More effective
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- Bills are scrutinised more clearly
- Treaties checked more carefully
- Nominees questioned more rigorously in the confirmation period
• Less effective
- Treatment of Republican supreme court nominees by Democrat controlled senate and
the impeachment process against Bill Clinton by a republican congress in 1998

- Power to declare war (in recent years there have been no congressional declarations)

Federalism
- Federalism and the Constitution

• Compromise after the failed confederate states in US

• Seen as middle ground
• Federalism is a theory of government by which political power is divided between a
national government and state governments, each having their own area of substantive
jurisdiction

• Federalism involves a degree of decentralisation

• Federalism isn't mentioned in the constitution but it was included in the three branches
of the federal government as well as the implied powers of the federal govt

- Not a fixed concept and factors led to an increased role for the federal government
• Westward expansion- 13 colonies that spread westward
• Growth of population- Population grew from 4million to 275million by 2000
• Industrialisation- Brought need for government regulation- federal executive
departments of Commerce and Labor formed in 1903

• Improvements in Communication- Nation grew in size but shrank in terms of

accessibility. People could communicate with others miles away first by phone and then
by fax and email

• Great Depression- Events influenced the federal state relationship as this made the states
look towards federal government to help solve problems of unemployment and public
work schemes

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• Foreign Policy- With the onset of the WW2 the USA stepped out as world superpower
and the federal government had a much more enhanced system

• Supreme Court Decisions- Decisions made by the supreme court further enhanced the
power of the government

• Constitutional Amendments- One of the three post Civil War amendments, the 14th
changed dramatically the federal governments relationship with the states.

- It then meant that prohibitions on state government

Phases of Federalism
- Between 1780 and 1920, the individual state governments exercised most political power.
It was very much based on states rights

• Following Wall St Crash and Great Depression, there was an increase in the power and
scope of the federal government made increasing use of categorical grants where it was
able to stipulate how federal tex dollars were used by the states

• During final 3 decades of 20th century, there was a movement towards decentralisation
which was known as New Federalism

• New federalism was a return of certain powers and responsibilities from the federal
government to state government

• reverse the growth of federal government under successive Democract presidents

• By Clinton, it was said that the ‘era of big government is over’

Consequences of Federalism
- Has consequences throughout US Govt
• Legal Consequences- Variety of state laws on such matters as the age of marriage, drive
a car or attend school. Laws vary on drugs and whether the death penalty can be used.
There are both federal and state courts

• Policy Consequences- States act as policy laboratories where new solutions are
experimented for old problems. Has been recently seen in healthcare and immigration
reform

• Political Consequences- All elections in the US are state based and run under state law.
Even with the preseidental election, it is a 50 state separate elections with the outcome
decided by the Electoral college

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• Consequences for political parties- Important to realise that political parties are
decentralised and state based. Texan democrats are more conservatives than Vermont
democrats

• Economic Consequences- Huge federal grants to states but also the complexity of the
tax system. Income tax is levied by both federal government and state government

• Regionalism- Regions of the south, midwest, northeast and west have distinct cultures
and accents as well as racial, religious and ideological differences

- Federalism has proved to be an appropriate system of government. It has adapted to the

ever changing nation. Despite frustrations, there are few who question its future

- Pros of Federalism

• Permits diversity
• creates more access points to government
• better protection of rights
• states experiment with new solutions
• well suited to geographically large nation
- Cons of Federalism

• can mask economic and racial inequality

• frustrates the national will and makes solving problems more complex
• federal state government relationship is continual source of conflict
• overly bureaucratic- costly and resistant to change

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