US constitution

Question 1

What was the first attempt to form a constitution?

Answer 1

Following the American Revolution, when the 13 original US states formed an agreement known as the ‘Articles of confederation’

Question 2

What was the first sign of weakness in the Articles of Confederation?

Answer 2

Weaknesses soon became apparent through events like Shays’ rebellion, an armed uprising in 1787

Question 3

Why were there tensions over the Articles of Confederation?

Answer 3

Tensions rose over how to balance freedom and the right to resist on occasion, with stability and effective government. Individual colonies all had their own distinct features- were of varying size and had different political institutions- and were reluctant to give up their hard won independence

Question 4

How were tensions over the Articles of Confederation solved?

Answer 4

A constitutional convention was held in Philadelphia from May to September of 1787

Question 5

What happened at the constitutional convention?

Answer 5

The 55 attendees (founding fathers eg Thomas Jefferson, Alexander Hamilton and George Washington) drew up the US constitution, it had to be ratified by 9/13 states to come into effect so when New Hampshire became the 9th state in June 1788, it came into effect

Question 6

What was the key constitutional debate?

Answer 6

How power should be balanced between states and the federal govt, and between large and small states

Question 7

What are the most important and enduring features of the US constitution?

Answer 7

1. It emphasised ‘representative government not democracy’. There were no aspirations to secret ballots or ‘one man, one vote’. The only nod to elections was ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the legislature.’ The notion of representative government was borne out further by the initially indirect elections to Senate and indirect Presidential elections.
2. It had a general fear of mass democracy. Hamilton wrote ‘Can a democratic assembly who annually revolve in the mass of the people be supposed steadily to pursue the common good? Nothing but a permanent body can check the imprudence of democracy.’ The permanent body to which he referred was the US constitution.
3. It was a product of its time, culture and authors. The founding fathers were all white christian males, most owned land and slaves and they had no intention of creating fundamental social change
4. It was a compromise in several important ways. The Connecticut compromise dealt with small and large states, they feared being dominated and conversely held to political ransom. It was decided that the upper chamber and senate would have equal representation from every state and that the lower chamber and the House of Representatives would have representation based on population size. The three fifths clause was a compromise between states with large populations of slaves like Virginia. Finally, there was also compromise between founding fathers like Hamilton who wanted strong central government and those like Jefferson who wanted power still to lie with individual states
5. There was an implicit fear of the danger of centralised power. Thomas Jefferson wrote in his autobiography that good governance came ‘not by the consolidation or concentration of powers, but by their distribution’. Power was thus separated and shared between states and the federal govt. Limited government was a key principle, both in the balance between individual rights and govt, and between the federal govt and individual states
6. Perhaps most crucially, the US constitution was sovereign and the ultimate source of authority. As stated in article VI, ‘This constitution shall be the supreme law of the land’. Neither President nor congress could override its provisions

Question 8

What are some principles of the constitution?

Answer 8

Vagueness and silence in the constitution
The need for a referee
The game of gridlock
Elections

Question 9

Why is the mixture of vagueness and silence on key issues a strength?

Answer 9

The combination of silence and ambiguity has proved a mixed blessing. It has allowed the constitution to evolve and develop over the centuries, without formal changes to its clauses. But sometimes, it has been unhelpful, causing uncertainty and a lack of clarity. For example, by saying nothing on slavery in the original document, the seeds were sown for a sectional divide that culminated in a bloody civil war in the 1860s. Only in its aftermath was it banned, under the thirteenth amendment of 1865

Question 10

What is an example of vagueness and silence in the constitution?

Answer 10

The necessary and proper clause once has empowered Congress to make all laws ‘necessary and proper’ in order to carry out the duties of federal laws. This is often called the ‘elastic clause’ as it has enabled legislature to adapt over time to changing circumstances and values. For example, the 1924 Immigration act reflected clear racial bias, banning the entry of all Asian people to the US. Yet, the 1965 Voting Rights act was passed by congress to forbid racial discrimination in voting. Such shifts in the law reflect changing perspectives and values.

Question 11

What is an example of ambiguity and uncertainty in the constitution?

Answer 11

One instance is the ability to make war, whether Congress or the president is ultimately responsible for initiating military action. The Constitution gives Congress sole power to formally declare war but conveys the tile of commander-in-chief on the President. Nowadays, its presidents who usually order military action, then seek approval from congress retrospectively. This military intervention often involved secrecy and subterfuge eg the bombings of Laos in the Vietnam war

Question 12

What is the need for a referee in the US constitution?

Answer 12

Due to areas of doubt and uncertainty, there have been multiple instances in the constitution’s history when it required authoritative interpretation. Judicial review grants the Court the power to interpret the constitution and declare laws or executive actions as unconstitutional and therefore illegal. However, it isn’t specifically mentioned in the constitution and only came to being in the 1803 case Marbury v Madison. As Charles Evans Hughes said in 1907 ‘We are under a constitution, but the constitution is what the judges say it is’

Question 13

What have the consequences of judicial review been?

Answer 13

It is a crucial function of the SC but has led to its politicisation as many contentious issues eg same sex marriage end up being decided in the SC. This reflects the vagueness of the constitution, and the need for a definitive legal opinion on what is and is not constitutional and lawful. This means the court has become a battleground for ongoing legal challenges on controversial topics. For example, while in the 1896 Plessy v Ferguson case, the court upheld racial segregation laws but these were reversed in the 1954 Brown v Board of Education of Topeka case

Question 14

How is the game of gridlock a principle of the US constitution?

Answer 14

It was designed to promote cooperation and compromise between the different branches. It often required mutual agreement between these branches eg all lows must be passed by both congressional chambers. It was hoped that this would ensure collaboration however reality has proved otherwise. All too often there is competition and deadlock between the branches.

Question 15

Example of competition and deadlock between the branches

Answer 15

For instance, the budget is proposed by the president and submitted for approval to congress. Recently, this has led to a standoff and gridlock. In the worst cases, this means limited govt shutdown has occurred. The longest lasting 43 days during Trump’s second term when party differences made a dispute over expiring healthcare subsidies more heated than usual. Arguably, instead of uniting Americans, the constitution inadvertently led to division and deadlock

Question 16

How does the constitution affect elections?

Answer 16

It places their organisation under the control of the 50 individual states. While some rules are uniform across the USA under laws like the Voting Rights act 1965, many are not and are in fact left to individual states. This can mean wide variations in the use of postal ballots, early voting, organisation of caucuses and voting rights of ex-felons. However, this has sometimes raised controversy over stricter voter ID laws, as some have sought to toughen up rules to prevent alleged voter fraud. But, this has led to accusations of voter suppression.

Question 17

What are the two main principles of the US constitution?

Answer 17

The separation of powers
Checks and balances

Question 18

What did the founding fathers seek for the constitution to do?

Answer 18

They envisaged it would limit govt and share the balance of power between the different branches

Question 19

Why did the founding fathers believe in a separation of powers?

Answer 19

The founding fathers were influenced by the French political philosopher Montesquieu. His 1748 work ‘The Spirit of the Laws’ argued the best way to avoid tyranny and absolutism was to divide govt into three distinct branches- legislature (congress), executive (presidency), and judiciary (the Supreme Court)

Question 20

Why is the separation of powers significant?

Answer 20

1. Each branch is clearly checked and limited by the others
2. No person can serve simultaneously in both congress and the legislature. For example, Clinton was forced to resign as New York senator when appointed Secretary of State
3. Helps prevent any one branch from having too much power and avoids having an ‘elective dictatorship’. For president to pass policy they must work with congress to ensure its compatible with the constitution
4. Helps preserve the independent and apolitical nature of the judiciary. This is essential to defend civil liberties and entrenched rights

Question 21

Why is the separation of powers not significant?

Answer 21

1. The term ‘seperation’ is misleading. It is better phrased as ‘shared powers’. For example, both the president and congress have powers to pass laws
2. The Vice President (executive) is also senate president (legislature) and has the casting vote in the event of a tie. Mike Pence used this power on several occasions, for example to confirm Besty DeVos as education secretary in 2017
3. A president with a supportive SC, whose party also controls Congress, can wield a lot of power
4. Few judiciaries in modern democracies are as politicised as the US judiciary. The involvement of politicians in the nomination and confirmation process has inevitably lessened their independence
   5.Presidents have the power of pardon, which does overlap with the judiciary’s powers and limits the significance of the separation of power

Question 22

What are presidential (executive) checks on Congress (legislative)?

Answer 22

1. Presidents can veto acts or resolutions passed by Congress. Eg Trump vetoed a resolution which revoked which revoked his declaration of a national emergency at the US-Mexico border
2. Presidents can issue executive orders to bypass the need for formal legislation. Eg in 2017 Trump introduced a travel ban on visitors from several countries, mostly Muslim majority countries
3. Presidents can use their role as commander in chief to deploy US troops overseas, avoiding congressional approval of declaring war. Eg in 2001 and 2003 respectively, President George W Bush ordered the invasions of Afghanistan and Iraq

Question 23

What are presidential (executive) checks on the courts (judiciary)?

Answer 23

1. The president nominates all federal justices, even in the case of a vacancy, to the Supreme Court. For example, Trump appointed Brett Kavanaugh and Amy Coney-Barrett.
2. The president can issue pardons and commutations to those convicted of federal crimes. For example, Trump pardoned the media mogul, Conrad Black in 2019, who had previously written a favourable biography about him

Question 24

What are congressional (legislative) checks on the president (executive)?

Answer 24

1. A presidential veto can be overturned by a supermajority in both houses. In 2016, Congress overturned Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA), the only of his vetos which was overturned
2. Congress has the power of the purse so can turn down presidential requests for funding. Eg on several occasions, congress frustrated Trump’s attempts to get full funding for his Mexican border wall
3. The nuclear option of impeachment can remove a president from office mid term eg in 2019 the house voted to proceed with an impeachment against Trump. Although he was not convicted he faced a second impeachment in 2021. This too was unsuccessful

Question 25

What are congressional (legislative) checks on the courts (judiciary)?

Answer 25

1. Congress can impeach federal justices and remove them from office. For example, in 2010, Louisiana federal judge, Thomas Porteus, was successfully impeached and removed from office for corruption in a near unanimous vote 2. Constitutional amendments can be initiated to overturn SC verdicts. Eg there have been attempts in Congress to pass amendments banning flag burning and prayer in public schools, although these have been unsuccessful

Question 26

What are judicial checks on the president (executive)?

Answer 26

Courts can rule presidential actions unconstitutional and therefore illegal. In Hamdan v Rumsfeld 2006 the Court ruled against special military commissions set up by George W Bush to try suspected members of al Qaeda

Question 27

What are judicial checks on congress (legislative)?

Answer 27

Can declare acts of congress to be unconstitutional and require them to be repealed eg in 2013 the defence of marriage act was ruled unconstitutional in United States v Windsor, marking a major advance for the legislation of same sex marriage across the USS

Question 28

How important are checks and balances?

Answer 28

1. It encourages political players eg congress and the president to deploy tactics to avoid constraints. Many presidents choose to negotiate executive agreements over full treaties with international powers eg Obama's nuclear deal with Iran, or to call a national emergency to secure funding with Congress' express approval eg Trump securing funding for the USA-Mexico border. They also often issue executive orders which don't need congressional approval, though they can be challenged in the courts 2. The President is subject to the most checks out of the three branches. This is a clear indication of the framer's fears, that the main threat to good government was too much power being in the hands of one person. Yet, arguably it's the president's office that has seen the greatest expansion of its powers in recent decades 3. They can also affect the timing of presidential initiatives. Presidents can struggle to pass legislation when their party doesn't control congress, in cases of a divided govt. Presidents often find they lose popularity midway through a 4 year term, leading to poor performance in midterm congressional elections, and potentially losing control of one or both chambers eg Obama's Democratic Party lost control of the senate in the 2014 midterms. Hence, most presidents try to push through major legislation in the first 2 years of their presidency eg Obama's Affordable Care Act, popularly known as Obamacare, by 2010 4. It can also lead to gridlock. When power is held in different hands, frequently little is achieved. By dispersing power, the founding fathers ensured, intentionally or not, that it's much easier to stop something happening, than to achieve something positive. While the structure was designed to promote bipartisanship and collaboration, the opposite has occurred. Bitter partisanship has meant parties show great reluctance to cooperate and compromise. Even a national emergency like Covid-19 in 2020 took several days of intense negotiation to pass the original $2.2 trillion stimulus package- the CARES act- passed. 5. Not all checks and balances have equal significance, the most powerful, arguably impeachment, are rarely used and unlikely to be successful. No US President has been successfully impeached, though President Nixon resigned in 1974 rather than face removal from office. Very often its the threat of checks and balances that has the most impact

Question 29

How can the constitution be amended formally?

Answer 29

The constitution was made deliberately hard to amend formally. Most successful amendments begin in Congress and are then ratified by individual state legislatures. In both cases, a high threshold of approval is needed. In one case, the 21st amendment, which repealed prohibition, was ratified via ratifying conventions in individual states. There is provision for amendments to be proposed by 2/3 of states calling for a national constitutional convention, however this has never been successful. In 1992, it was almost successful, 32 states petitioned congress for a convention to propose a balanced budget amendment. But, this fell two states short of the threshold so failed.

Question 30

How many successful amendments have there been?

Answer 30

There have been 27 successful amendments, only 25 of which are 'live amendments' and, ten of which were passed soon after the Constitution was ratified. These were the 1971 Bill of Rights.

Question 31

Example of key amendment from the bill of rights

Answer 31

First amendment which introduced freedom of religion, speech, press and assembly

Question 32

Example of key amendment after the bill of rights

Answer 32

The thirteenth amendment, of 1865, abolished slavery

Question 33

What's the difference with informal amendment?

Answer 33

Formal ratification is rare and difficult, informal amendments via SC judgements are far more common and arguably help the constitution to stay relevant and up to date

Question 34

Why could the constitution be too hard to amend formally?

Answer 34

1. Very few amendments have recently been passed due to the high required thresholds- only 27 passed in 200 years 2. The constitution contains some provisions that many consider outdated, eg the Electoral college 3. It prevents the constitution from being updated, especially in terms of rights. While some key groups are protected eg minority racial groups, others eg women are not 4. Significant informal amendment takes place via SC judgements from individuals who are unelected and unaccountable 5. Theoretically, states can initiate formal amendments under article v, but no national constitutional conventions have been held

Question 35

Why is it good that the constitution was hard to amend formally?

Answer 35

1. High thresholds for formal amendment means change only happens when there is a wide consensus and broad agreement 2. Obsolete clauses can be repealed, as with prohibition. Some aspects like the 2nd amendment, the right to bear arms, are capable of sensible adjustment eg banning the sale of certain weapons 3. The rights of groups not specifically constitutionally protected can be equally well defended by federal and state laws. If amendments were made easier, there would be great debate over whose rights should be defended. Debate over the rights of certain groups eg transgender people could be very controversial 4. The SC often takes note of the direction of public opinion when reaching its conclusions and when informally amending the constitution eg the LGBTQ+ rights 5. The current amendment process theoretically allows for a federal dimension via a national constitutional convention as it is state initiated

Question 36

How does the courts make informal amendments?

Answer 36

The constitution is primarily updated via sc judgements. The court is crucial interpreting the constitution via judicial review. this has led judges to discover new meanings and rights within existing clauses eg the right of corporations and interest groups to enjoy First amendment rights and extend free speech to political activity and organisation following the Citizens United case

Question 37

How do informal amendments work including example?

Answer 37

Constitution is primarily updated via sc judgements. The court has a curial role in interpreting the constitution via judicial review when judges 'discover' new meanings and rights within existing clauses. For example the rights of corporations and interest groups to enjoy First Amendment rights and extending free speech to political activity and organisation following the Citizens united case

Question 38

What is the debate over informal amendment?

Answer 38

Can framer's intentions really be interpreted? Can we ever truly know, for example, what George Washington, if he were still alive and living in the 21st century, would have thought about gay rights? Many conservatives would argue this is an impossibility and therefore decisions should be left to legislatures. Many liberals would disagree, saying the constitution is a 'living document' capable of reinterpretation for a modern age. Ultimately, judicial interpretation of an ancient document is applicable on issues like technology that founding fathers could never have envisaged.

Question 39

Why did the founding fathers advocate limited govt?

Answer 39

The original framers were thinking abt govt infringing on the rights of individual citizens and central/ federal govt infringing on the rights of separate states

Question 40

What was introduced to limit govt?

Answer 40

Reserved powers, as per the tenth amendment (the federalist clause), all powers not expressly delegated to federal govt eg trade and defence are reserved to the 'states respectively or the people'

Question 41

Was there debate over federalism at the constitutional convention?

Answer 41

There was fierce disagreement between those who wanted stronger central govt eg Alexander Hamilton (confusingly termed federalists) and anti federalists who supported more autonomy for states eg Thomas Jefferson

Question 42

Does the constitution clear up the issue of federalism?

Answer 42

No it makes no explicit reference to federalism. However it does clearly states must conform with the constitution and with federal law which has primacy

Question 43

The argument over the distribution of power between federal govt and individual states remains a major focus of political struggle. Name 3 key landmarks and explain what this shows abt the shifting power

Answer 43

The sixteenth amendment of 1913 allowed for national income tax. It is the only constitutional amendment which expressly extended the authority of central govt The new deal of the 1930s and WW2 needed huge increases in the power and influence of central govt eg during the depression, a nationwide social security programme was established. During the war industry became much more coordinated on a national scale Under Obama govt spending rose with new healthcare reforms eg the Affordable Care Act and measures to help stimulate the economy after the 2007-2008 financial crisis eg the 2011 American Jobs Act which provided $140 billion to repair roads and modernise schools Federalism was seriously weakened after the 1930s as the world became more global and complex, as people's expectations of what govt should provide grew, and as a result of military, economic and medical crises. This meant federal govt began doing more and certainly spending more

Question 44

What is the current balance of power between individual states and federal govt?

Answer 44

States powers have been eroded in recent decades with a clear shift towards central govt. Recent discussion over central govt’s role focuses on what form interference takes. Many politicians on both sides support state’s rights, unless they go for the wrong sort of rights. Eg Democrats would support federal govt imposing healthcare expansion on states via Obamacare but would bitterly resist individual states opting to restrict abortion access

Question 45

Where do states still retain important roles?

Answer 45

The ability to legislate in a wide range of areas eg access to abortions. Several conservative states like North Dakota have tightly restricted abortion laws The death penalty is primarily state based eg a heinous murder in one state like Texas could leave the perpetrator on death row while in an adjoining state they would serve a life sentence without parole States run and conduct elections, deciding whether to hold caucuses or primaries to select party candidates. Key issues include postal ballots, voter ID and direct democracy

Question 46

How do states powers change in times of crisis?

Answer 46

States are often at the forefront of crisis response. Inevitably national involvement is still required through financial help and federal agencies. During Covid 19 the US response seemed to lack centralised coordination, with president and governors often blaming each other for equipment shortages eg ventilators and PPE. Illinois governor JB Pritzker called Trump’s response incompetent saying he ‘does not understand the word federal’ referring to the presidents instructions for states to seek their own resources. By way of response Trump criticised some Democrat governors for their speed of response tweeting ‘Some [governors] have insatiable appetites abd are never satisfied, remember we are a back up for them. The complainers could have been stocked up and ready long before this crisis hit’ The corona outbreak also revealed different state’s approaches to the unfolding crisis. Some states eg Ohio were quick to lock down while others eg Florida were much slower Also led to an explicit power struggle between federal and state authorities. On 13th April 2020 when questioned about easing the lockdown, Trump declared that for the president ‘authority is total’. He was referring to his ability to dictate national events and override individual states. In response Governor Cuomo of New York said ‘the constitution says we don’t have a king…we didn’t have a king George Washington but president george Washington’

Question 47

How is the constitution flawed?

Answer 47

It's too rigid and takes an uneven approach to protecting rights and liberties as well as specific clauses eg need for an electoral college. Has also been criticised for enhancing the role of unelected judges who carry out the task of interpretation

Question 48

Why might the issue be US politics not the US constitution?

Answer 48

The US political culture is characterised by deep polarisation and hyper partisanship, arguably preventing the constitution from functioning effectively

Question 49

Give three examples of problematic constitutional clauses and explain why

Answer 49

The constitution balances the interests of small and large states by equal representation in the senate and proportional population based representation in the house. This reflects the diversity and federalism in Modern America. However, the gap between large and small states has mushroomed since the 1780s. Today, the largest state California is 68 times larger than the least populous state Wyoming. Small states are increasingly overrepresented in the Senate, half of senators are elected by states representing just 16% of the population In foreign policy, the constitution shares vital war making powers between executive and legislature. No trigger happy president can therefore launch a major war without the consent of Congress. However, the constitution is unhelpfully ambiguous about war making powers with congress having the power to declare war and the president to make war. Can the constitution really be said to be working effectively when there hasn't officially been a war since 1945 The Bill of Rights entrenches and protects key rights eg free speech and free expression. However, the second amendment right, appears anachronistic and even dangerous to many today. Were the founding fathers really envisaging a society of mass gun ownership for self defence against fellow Americans

Question 50

Analyse the separation of powers in the US constitution

Answer 50

The separation of powers between different govt branches, the federal govt and individual states remains as crucial today as when the constitution was first composed. However, the constitution has no prevented the White House and federal govt from slowly accumulating power at the expense of the states. States' rights have diminished over the last century as federal govt and its agencies become ever more bloated

Question 51

Analyse checks and balances in the US constitution

Answer 51

They remain vital to ensuring no one branch can dominate and in times of urgency promote collaboration and cooperation. This can be seen with the rapid passage of the Patriot Act soon after the 9/11 attacks, and with the vast stimulus and intervention package put together during COVID-19. However, US politics remains hyper-tribal, with little true bipartisanship. Checks and balances can often result in gridlock and political point scoring. Senate confirmation votes are often decided entirely along party lines eg in the 2020 Confirmation vote for Amy Coney Barrett only one republican and no democrat breaking party ranks.

Question 52

Analyse vagueness in the US constitution

Answer 52

The vagueness of many of the constitution's terms eg 'necessary and proper' allows for flexible and evolving interpretations, which ensure the constitution remains relevant. However, it does raise questions over whose interpretation? Arguably, too much is in the hands of nine unelected SC justices who often read things differently, Many key decisions on high profile matters eg same sex marriage are therefore decided on the thinnest of margins. This suggests interpretation can be subjective and partisan

Question 53

Analyse the amendment process to the US constitution

Answer 53

The amendment process is robust and requires a supermajority. This avoids constant changing of the constitution according to the whims of the day. However, some would argue things have gone too far in the other direction with the constitution simply being a well preserved relic. The last major formal amendment was over 50 years ago so can it truly be said that the amendment process is working effectively

Question 54

How effectively has the constitution adapted?

Answer 54

It has managed to adapt to a world where a strong executive is vital to tackle and coordinate complex problems. A swift response, a degree of national uniformity and rising expectations of public services all require a strong presidency. However, this highlights how far the modern constitution has come from its original framers' intentions. They envisaged a proactive congress and a supervisory president, the USA has pretty much become the opposite, a proactive presidency and a reactive congress

Question 55

Why does the constitution protect individual rights well?

Answer 55

Many key rights, particularly those in the bill of rights are explicitly protected eg first amendment right to free speech and expression and the sixth amendment right to a swift, fair and public trial. These are entrenched and inalienable would be very difficult to overturn SC judgements can discover new rights in the 'elastic clauses' eg equal protection The US has adapted well to changing ideas of rights and many rights have been updated via judicial review. The US is largely on par with other democracies however in trickier areas like abortion some would argue that was just a rebalancing of rights between the unborn and women. Many notes of rights are subjective and controversial

Question 56

Why does the constitution not protect individual rights well?

Answer 56

Many rights and groups are not explicitly constitutionally protected, eg the rights of children The SC's interpretations are inevitably subjective and can/ do alter over time, leading to uncertainty and contradictions In theory, laws passed by congress can still be reversed and lack the embeddedness of constitutional rights The US has some bizarre quirks in its approach to rights. No other European democracies still permit the death penalty or grant entrenched rights to gun owners

Question 57

Thesis for how effectively the constitution protects rights?

Answer 57

The US constitution remains a paradox, with patchy and selective coverage. Often, it's clear the constitution is a product of its time